A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Saturday, August 12, 2006

Now that's a reversal!

I don't usually blog about unpublished restitution cases, but here is the exception to the rule. Matt Edge won in State v. Winter, No. 93,190 (Kan. App. Aug. 11, 2006)(unpublished), reversing a $740,000 restitution judgment stemming from a Kingman County theft conviction. And the COA terminated Mr. Winter's probation due to improper extension after it had terminated. Here is Matt's summary of the remarkable case:

Mr. Winter pleaded guilty to seven counts of felony theft in 1986 and got probation. Under the law then in effect, the total time he could spend on probation was thirty-five years. He was also ordered to pay $740,000 in restitution. Mr. Winter’s probation was extended several times. In February 1996, the district court entered an order purporting to extend probation "until July, 2001" without specifying a date. On August 3, the state moved to extend probation until 2006. The state moved to revoke probation in 2004. In response, Mr. Winter filed a motion to terminate probation and release the judgment of restitution. Mr. Winter argued K.S.A. 22-3424 converted the restitution order into a civil judgment that had extinguished for lack of a timely renewal or revivor under K.S.A. 60-2403(d). The district court overruled the motion and entered a new probation order. On appeal, Mr. Winter challenged not just the denial of the motion, but whether the district court even had jurisdiction tomodify probation.

Under State v. Morrison, 28 Kan. App. 2d 249, 14 P.3d 1189 (2000), getting the denial of the motion reversed was a slamdunk. Renewal and revivor laws apply to restitution judgments, even if the defendant is still on probation. As for the probation, the COA held that the district court lost jurisdiction to extend probation in 2001. The order extending probation "until July" was vague. As a penal order, it should be construed in favor of the defendant. So "until July" meant "until July 2" (July 1, 2001 was apparently a weekend), so the state’s motion to extend on August 3 was not timely. So Mr. Winter not only gets off probation, but he gets out from under the restitution judgment, too.

[Update: the state did not file a petition for review and the mandate issued on September 14, 2006]